It’s been a busy week for the Metro Legal Department, where attorneys are digesting a recent federal court ruling that influences how students are admitted to the most sought-after slots at public schools.
School board officials, the Metro Legal Department, and Mayor Phil Bredesen have known for some time that the race-conscious lottery method the city uses to admit students to Metro’s popular magnet schools is probably illegal. The policy in Metro is that magnet schools must have 40 percent black enrollment, with a flexibility of 10 percent either way. Metro’s practice of reserving set-asides for black students has been under fire for some time, especially when magnet schools have turned away whites even though there is a shortage of black applicants.
Now, in what city attorneys say may be the most definitive case so far on the issue, the illegality of the quota practice has been further confirmed.
Just days ago in Boston, the parents of Sarah Wessman won a ruling that gave their daughter a slot in the competitive Boston Latin School. The ruling also struck down the school’s racial-preference policy. Wessman, a white student, was rejected from the school at the same time several minority students with lower test scores were admitted.
While the First Circuit Court of Appeals ruling doesn’t apply in Tennessee, the ruling is a specific example of how federal courts look upon using race as a factor in student assignment and enrollment. It represents a growing trend of judicial disfavor on the practice.
”We’ve been looking at Boston as a sort of example,“ says Leslie Shechter, an attorney in the Metro Legal Department.
City attorneys are scheduled to meet with school board members later this month to brief them on court developments and to possibly—indeed, probably—recommend that the school board adopt another method of magnet school enrollment that doesn’t rely on racial quotas.
Already, a conservative organization in Atlanta—the Southeastern Legal Foundation—has put the school board on notice that it lies in wait to sue the body if it doesn’t stop what it calls ”unconstitutional“ magnet school admissions practices. The group has also vowed to sue the school board over the entire $206 million desegregation plan because it says the new school zone lines were illegally drawn with the race-conscious idea of keeping schools diverse.
On that issue, the city’s desegregation plan—which has ended federal court-ordered busing and federal court scrutiny—can be defended, Metro lawyers say. That’s because other factors—such as socioeconomic status and minimizing school transfers—were used to determine the school zone lines. Attorneys say courts look more favorably on the use of race if it represents only one of a number of other factors.
”In our opinion, [magnet school quotas] are the only aspect of the new desegregation plan that has a race-conscious policy as part of the selection process,“ Shechter says.
Just as Nashville is no longer bound by a federal court mandate, Boston’s Latin School isn’t either. Still, the school kept a set-aside for Hispanic and black students so that it could maintain a level of ethnic diversity. Ultimately, though, the First Circuit Court of Appeals has decided that the goal of diversity is not a solid or quantifiable enough reason to reject some students and admit others.
The First Circuit opinion says that in recent U.S. Supreme Court cases dealing with racial issues, ”a majority of the justices are highly skeptical of racial preferences and believe that the Constitution imposes a heavy burden of justification on their use.“ The opinion’s conclusion says that ”only solid evidence will justify allowing race-conscious action and the unsystematic personal observations of government officials will not do, even if the conclusions they offer sound plausible and are cloaked in the trappings of social science.“
The court’s judges say in the opinion that they ”admire the values“ the school ”seeks to nourish.“ But, the opinion says, ”noble ends cannot justify the deployment of constitutionally impermissible means.“
Like it or not, the Metro school board probably needs to come to grips with that too.
